Mini-Togs, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 644 (N.L.R.B. 1991)

644
304 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. We specifically
reject the Respondent’s contention that the judge incorrectly discredited the
testimony of Willis Bradshaw concerning the timing of the layoffs of six in-
spectors. Even were we to interpret Bradshaw’s testimony in the manner advo-
cated by the Respondent, we would still find that it inadequately explains the
timing of the layoffs in view of the judge’s primary reliance on the inconsist-
encies in the related testimony of Acting President Hakim and the residual
contradictions in Bradshaw’s testimony.
Additionally, the Respondent asserts that the judge’s findings are a result
of bias. After careful examination of the entire record, we are satisfied that
this allegation is without merit.
The judge discredited the testimony of employee McHenry that Supervisor
Hemphill informed her that inspectors were discharged because some of them
had attended a union meeting, and the testimony of McHenry and employees
Miller and Deiter concerning remarks they attributed to Hemphill in a con-
frontation on September 16. Notwithstanding these credibility findings, in two
instances in sec. II,B,2 of his decision, the judge refers to purported disclo-
sures of knowledge of union activity by Hemphill that are inconsistent with
such findings. The judge’s error, however, is inconsequential because of cred-
ited testimony regarding an admission of unlawful motive by Supervisor
Standifer, which was also cited in the same two instances.
In the second and fourth paragraphs of sec. II,C of his decision, the judge
incorrectly stated that Bradshaw spoke to Greenhagen and her colleagues, in-
stead of stating that Bradshaw spoke only to Brenda McHenry, Opal Deiter,
and Karen Miller. That error does not affect the result.
No exceptions were taken to the judge’s dismissal of certain complaint alle-
gations and his findings of violations of Sec. 8(a)(1) in connection with the
Respondent’s October 17 speech given by Edward Hakim, the Respondent’s
acting president, to the employees.
2 We correct the judge’s inadvertent oversight in neglecting to include Eric
Coler’s name in the list of employees in par. 2 of the Conclusions of Law.
3 We find merit in the Respondent’s exception that the judge erred in stating
that no employee had asked the Respondent for assistance in revoking a union
authorization card. However, the Respondent’s response primarily encom-
passed employees who had not requested such assistance.
4 Admitted into evidence was a list of Respondent’s rules. At the bottom
of the list was the statement: ‘‘any breaking of rules listed above may warrant
immediate termination.’’
Mini-Togs, Inc.; Luv-N-Care, Inc.; and Embroi-
deries, Inc., a single employer and United Steel-
workers of America, AFL–CIO–CLC. Case 15–
CA–10742–1
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On August 31, 1990, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
1. We agree with the judge’s finding that the Re-
spondent’s distribution to employees of forms to be
used in revoking union authorization cards violated
Section 8(a)(1) of the Act. We make this finding in
light of all the conduct surrounding the distribution of
withdrawal request forms. We also rely on the fact that
the forms were distributed after Hakim’s October 17
speech that included threats of discharge and plant clo-
sure in violation of Section 8(a)(1), and that the forms
were distributed so that the Respondent could ascertain
who accepted the form; this procedure foreseeably
could cause some employees to take a form out of fear
of retribution.3 Furthermore, the forms suggested that
a copy be given to the Respondent, implying that the
Respondent would know which employees executed
such a form. The Respondent cites R. L. White Co.,
262 NLRB 575 (1982), for the proposition that distrib-
uting card revocation forms is not always illegal. We
do not disagree, but we find that case inapposite here.
In R. L. White, the employer, after giving a lawful
speech, made information available for employees to
use if they chose, without any attempt to ascertain
whether employees would make use of it. Here, in
contrast, as the above recitation of facts makes clear,
the distribution of revocation forms took place in a co-
ercive atmosphere with the added feature that the Re-
spondent might gain knowledge of which employees
repudiated their cards and which did not.
2. The judge found that the Respondent seized on
Alice Faye Washington’s use of obscene language on
October 28 as a pretext for ridding itself, on October
31, of an outspoken union advocate, in violation of
Section 8(a)(3) and (1) of the Act. Alternatively, he
found that, even if Respondent discharged Washington
for her use of obscene language, the discharge would
be unlawful under Section 8(a)(1). In so concluding, he
relied on the proposition, applied in Postal Service,
250 NLRB 4 fn. 1 (1980), and cases there cited, that
an employee’s utterance of ‘‘obscenities’’ as ‘‘part of
the res gestae of concerted protected activity’’ does
not, per se, constitute conduct ‘‘so flagrant or egre-
gious’’ as to remove the concerted activity from the
protection of the Act. The Respondent excepts to both
findings. We affirm.
The Respondent does not deny knowledge of Wash-
ington’s union sympathies and her activities in the
Union’s behalf. It argues instead that she was dis-
charged solely for directing profane and defamatory
language at other employees, in violation of its posted
rule prohibiting ‘‘provocative statements.’’4 It distin-
guishes such conduct from the mere use of profanity,
which it acknowledges occurred in its plant on a regu-
lar basis and which the judge found to be the Respond-
ent’s asserted ground for discharge. It argues that Ha-
kim’s testimony that directing offensive language at
others would result in discipline while the mere use of
such language would not, and his testimony that in the
645MINI-TOGS, INC.
5 In one instance, an employee called another employee a ‘‘whore.’’ Hakim
thought he had settled the matter and sent them back to work, but the insulted
employee stabbed the other one with a pair of scissors. Both employees had
to be arrested. In another instance a supervisor was called a ‘‘f—ing bitch,’’
and when she responded that she did not have to take such abuse, the em-
ployee broke a coke bottle and attempted to cut the supervisor with it. There-
after, the employee was terminated.
6 In one instance, an employee called Hakim a ‘‘damned liar’’ and Hakim
personally terminated the employee. In another instance, an employee called
a supervisor a ‘‘bitch,’’ causing the supervisor to refuse to give him his time-
card, whereupon the employee twisted the supervisor’s arm behind her back
and threw her on the ground. She was taken to the hospital, and he was termi-
nated and arrested. This is similar to the situation in which a supervisor was
called a ‘‘f—ker.’’ The employee was fired, but permitted to return after a
month and an apology. Later, the employee called the same supervisor a ‘‘f—
kin’ bitch,’’ used other inappropriate language, threw the supervisor to the
ground, and was removed from the facility. There is also an instance involving
what the employer characterizes as the use of the phrase ‘‘f—in’ bastard’’ in
a provocative way. An employee called Bradshaw a ‘‘f—ing bastard’’ and
Bradshaw fired the employee, who was then removed from the premises by
police. Finally, there is the example in which employee Melissa Blunt cursed
her supervisor and was fired. The record does not reveal the language used.
7 One of the Respondent’s witnesses testified that employee Virginia Wiley
had ‘‘called somebody a bitch or told her to move her ass from the time
clock,’’ and that in a similar instance somebody told employee Fay Kendricks
‘‘to move her ass or called her an ass.’’ The perpetrators apologized and re-
ceived ‘‘two week or 30 day’’ suspensions. Insofar as these accounts are un-
clear as to what actually was said, and they are part of the Respondent’s af-
firmative defense, we shall construe any ambiguities in them against the Re-
spondent. Thus, we find that in both instances employees were told to ‘‘move
their ass.’’
8 We note that this is distinguishable from discriminatee Eric Coler’s alleged
remark to Donita Key that she should move her ‘‘fat ass’’ and referring to
her as ‘‘a fat doughnut’’ to another employee, who told Key of the uncompli-
mentary reference. The Respondent does not allege that Coler made the remark
to Key in a serious or rough tone of voice. Rather, the Respondent alleges
in essence that Coler was harassing Key by mocking her. However, the judge
found that another employee, Ponsell, was only given warnings for twice
harassing another employee. Thus, the judge concluded that the Respondent
did not show that it would have discharged Coler absent his having signed
a union card. Even if we were to construe these incidents as similar in kind
to those described in fn. 7, we note that Coler was terminated, rather than sus-
pended for his remarks about Key, which as noted, occurred in a
nonconfrontational setting.
past approximately six employees had been terminated
and two suspended for similar conduct, rebuts the Gen-
eral Counsel’s prima facie case of unlawful motivation
(The Respondent concedes that a prima facie case was
established.) In support of this argument, the Respond-
ent argues that the judge was mistaken in declaring
that the Respondent had not shown any instance of dis-
cipline for conduct like that of Washington.
The Respondent did submit instances of discipline in
which profane or obscene language directed at others
played a part. In all the examples it presented, how-
ever, the conduct being punished either included phys-
ical misconduct5 or involved insubordination or dis-
respect to supervisors,6 or involved one-on-one con-
frontations where one employee told another to ‘‘move
her ass.’’7 This last type of conduct arose in situations
in which one employee’s path was blocked by another.
Given the confrontational nature of such situations, the
use of the rough language amounted to more than pro-
fanity directed at another. It reinforced an implicit
physical challenge, amounting almost to a veiled threat
that force might follow if compliance were not forth-
coming.8
Washington’s conduct was not like that involved in
any of the instances cited by the Respondent. As far
as the record shows, she was the first employee dis-
ciplined for the use of profane or offensive language
directed at others where that language was not either
directed at a supervisor or accompanied by actual or
threatened physical misconduct. Moreover, some of her
remarks simply expressed her opinion of antiunion
propaganda (e.g., ‘‘God-damned lies’’), and cannot se-
riously be viewed as being directed towards others.
Even the two instances that could be construed as
being directed personally at employees—one in which
she shouted ‘‘You f—in’ whores better stop putting
these papers on my table unless I ask for one,’’ when
she found unsolicited antiunion literature on her sew-
ing machine, and the other when she stood up at lunch
the same day and proclaimed that those who distrib-
uted such literature to be ‘‘f—ing whores’’—appear to
have been more in the nature of general announce-
ments to her fellow employees as a group than mes-
sages directed to particular identified employees. As
such, they manifested her displeasure at receiving un-
solicited propaganda and her thought that antiunion ef-
forts were of questionable morality. They were not in
any sense a first step towards violence, nor did they
involve physical misconduct, veiled threats, or insubor-
dination.
Accordingly, although we do not condone the lan-
guage used by Washington (albeit such language was
common in the plant), we agree with the judge that it
was seized upon as a pretext to discharge Washington
in retaliation for her union activities.
In attacking the judge’s alternative finding that
Washington’s obscenities were part of the res gestae of
her protected concerted activity, the Respondent argues
that she was not acting pursuant to authority conferred
by coworkers, trying to induce group action, or in-
volved in processing a grievance as was the employee
in Postal Service, supra. Apparently it is the Respond-
ent’s position that, without the presence of at least one
of these circumstances, no basis exists for finding that
Washington engaged in concerted activities within the
meaning of Section 7 of the Act. We find no merit in
that position.
As the Supreme Court explained in NLRB v. City
Disposal Systems, 465 U.S. 822, 831, 833 (1984):
[Section] 7 itself defines both joining and assist-
ing labor organizations—activities in which a sin-
gle employee can engage—as concerted activities.
[Footnote omitted.]
. . . .
When an employee joins or assists a labor organi-
zation, his actions may be divorced in time, and
in location as well, from the actions of fellow em-
ployees. Because of the integral relationship
among the employees’ actions, however, Congress
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The employees who distributed the literature were, of course, also exercis-
ing a Sec. 7 right, the right to ‘‘refrain’’ from assisting a union. Such an em-
ployee’s expression of objections to prounion literature would be equally pro-
tected by the Act.
1 All date are in 1988 unless otherwise indicated.
viewed each employee as engaged in concerted
activity. The lone employee could not join or as-
sist a labor organization were it not for the related
organizing activities of his fellow employees.
In the present case, a number of employees had em-
barked on a union organizing campaign, and Washing-
ton joined in that campaign by, inter alia, objecting to
the placement of antiunion literature and those who
distributed it.9 Thus, unless her use of obscenities and
profanity in expressing her disapproval of antiunion
employee activities was so flagrant or egregious as to
cost her the Act’s protection, her conduct would not
warrant discipline. We find that her behavior was not
sufficiently flagrant or egregious. The offensive ele-
ment of her conduct consisted only of shouting epithets
commonly used in the plant and making remarks that
were unkind to others. Although, as noted earlier, we
do not condone such remarks, we find that they were
not so opprobrious in the context in which they were
made as to place her beyond the Act’s protection. See,
e.g., Postal Service, supra, 250 NLRB at 6 (employ-
ee’s use of term ‘‘stupid ass’’ did not remove Act’s
protection from activity otherwise within Sec. 7);
American Telephone & Telegraph Co., 211 NLRB
782, 783 (1974) (same as to employee/union represent-
ative’s shouting and questioning manager’s intel-
ligence); NLRB v. Thor Power Tool Co., 351 F.2d 584,
587 (7th Cir. 1965) (same as to grievance committee-
man’s use of term ‘‘horse’s ass’’).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mini-Togs, Inc.; Luv-N-
Care, Inc.; and Embroideries, Inc., a single employer,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Mark Kaplan, Charlotte N. White, and Joseph B. Morton III,
Esqs., for the General Counsel.
David Hagaman Esq. (Clark, Paul, Hoover & Mallard), of
Atlanta, Georgia, for the Respondent.
James A. Pepitone, of Baton Rouge, Louisiana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Monroe, Louisiana, on March 29 and 30
and May 16 and 17, 1989. The charge was filed on Novem-
ber 21, 1988, and an amended charge was filed on December
28 1988.1 The Acting Regional Director for Region 15
issued the complaint in this case on December 30. The com-
plaint alleged that the Respondent, Mini-Togs, Inc.; Luv-N-
Care, Inc.; and Embroideries, Inc., a single employer, vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act) by creating the impression among its employees that
their union activities were under surveillance; threatening
employees with plant closure and loss of employment be-
cause they supported the United Steelworkers of America
AFL–CIO–CLC (the Union) by promulgating and maintain-
ing a rule prohibiting solicitation and distribution by off-duty
employees during nonworking time, interrogating employees
regarding the union membership, activities, and sympathies;
threatening employees with discharge or layoff because they
supported the Union; and soliciting employees to withdraw
their support for the Union. The complaint also alleged that
the Respondent violated Section 8(a)(3) and (1) of the Act
by laying off and discharging employees because they sup-
ported the Union. The Respondent by its timely answer de-
nied that it had committed the alleged unfair labor practices.
On careful consideration of the entire record, my observa-
tion of the demeanor of the witnesses as they testified, and
after reading and considering the posttrial briefs I received
from the General Counsel and the Respondent, respectively,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent concedes, and I find, that it consists of
Mini-Togs, Inc.; Luv-N-Care, Inc.; and Embroideries, Inc.,
which are corporations, with offices and places of business
at a common facility in Monroe, Louisiana, where they oper-
ate as a single integrated business enterprise and constitute
a single employer within the meaning of the Act. Mini-Togs
engages in the manufacture and nonretail sale and distribu-
tion of children’s clothing and related products. Luv-N-Care
engages in the manufacture and nonretail sale and distribu-
tion of baby bottles and related products. Embroideries pro-
vides nonretail embroidery services.
The Respondent admitted, and I find, that during the 12-
month period ending on September 30, which was a rep-
resentative period, the Respondent, in the course and conduct
of its business operations described in the preceding para-
graph, purchased and received at its Monroe, Louisiana facil-
ity products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Louisiana.
The Respondent conceded, and I find, from the foregoing
data, that it is, and has been at all times material to this case,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admitted, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
In early September, the Union embarked on a campaign to
organize the Respondent’s employees. On September 8,
647MINI-TOGS, INC.
2 I based my findings regarding Supervisor Antley’s remarks to Karen Miller
on September 13 on Miller’s uncontradicted testimony.
3 According to Brenda McHenry’s testimony, Lottie Shaw was absent from
work on September 13. However, Supervisor Antley testified that she sum-
moned all six inspectors. Also, Production Manager Bradshaw testified that he
spoke to all six inspectors in Antley’s office on that date. I have credited
Antley and Bradshaw.
4 I based my findings regarding Standifer’s remarks, upon employee
Ponsell’s testimony. I did so after carefully reviewing Ponsell’s testimony and
considering his demeanor while testifying, and doing the same regarding the
contrary testimony of Standifer and Knighten.
On direct examination, Standifer recalled that there was a layoff on or about
September 12, and that he observed people leaving the Respondent’s plant
about 1 or 1:30 p.m. Standifer also denied having any conversation with em-
ployees Ponsell and Knighten about the layoff or the reason for the layoff.
However, on cross-examination, Standifer first contradicted his earlier testi-
mony by denying that he was aware of a layoff, and then testified that he ‘‘as-
sumed they were laid off.’’ Under further cross-examination, Standifer first de-
nied discussing with anyone the reason for the departure of the six employees.
Then, immediately after that flat denial, under close cross-examination,
Standifer testified that he told employee Carey Johnson that the six employees
were leaving because ‘‘they were caught up on their work.’’ These quick re-
versals in Standifer’s testimony and his uneasiness as he testified on cross-
examination cast serious doubt upon his reliability as a witness.
Knighten fatally impaired his credibility, when he flatly denied on cross-ex-
amination that he had discussed his testimony with either Respondent’s coun-
sel or Ed Hakim prior to appearance as a witness for the Respondent. I find
it highly unlikely that Respondent would have proffered Knighten’s testimony,
on March 17, 1989, without previously asking him about his testimony.
Knighten further impaired his credibility by an evasive response to a question
regarding a telephoned request by Hakim on May 16, 1989, that Knighten re-
main at the plant until Hakim could arrive and discuss his testimony.
In contrast with Standifer and Knighten, Ponsell impressed me as being a
candid witness, who had respect for the proceedings, and was providing his
best recollection. Accordingly, I have credited Ponsell’s testimony.
James A. Pepitone, the Union’s representative, met with ap-
proximately 13 of the Respondent’s employees at the Holi-
day Inn Holidome, in Monroe, Louisiana. At this meeting,
employees signed authorization cards for the Union. There-
after, the Union held a series of bimonthly meetings with the
same and additional employees, at the same location.
The Union’s supporters among the Respondent’s employ-
ees formed an organizing committee and distributed prounion
literature, and asked fellow employees to sign authorization
cards for the Union. Early on the morning of October 20, the
organizing committee distributed copies of a prounion flyer
near the Respondent’s plant to employees arriving for work.
The flyer carried the signatures of the 13 employees on the
organizing committee. In November and December, the
Union filed the unfair labor practice charges in this case. The
record did not reveal any further action either by the organiz-
ing committee or by the Union to achieve collective bargain-
ing for the Respondent’s employees.
The issues presented here include whether, in response to
the union activity among its employees in September and
October, the Respondent violated Section 8(a)(1) of the Act
by: (a) creating an impression among its employees that it
was keeping their union activities under surveillance; (b)
threatening its employees with plant closure if they selected
the Union as their collective-bargaining representative; (c)
threatening employees by informing them that other employ-
ees had lost their jobs because of their union activity; (d)
threatening employees with discharge because they support
the Union; (e) promulgating, maintaining, and enforcing a
rule prohibiting off-duty employees from soliciting and dis-
tributing on its premises, on the Union’s behalf, during non-
working time; (f) interrogating its employees regarding their
union membership, activities, and sympathy; (g) threatening
employees with layoffs or plant closure if they selected the
Union as their collective-bargaining representative; and (h)
soliciting employees to withdraw their signed union author-
ization cards.
Further issues presented are whether the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by terminating the
employment of employees Irene Anderson, Opal Deiter,
Hazel Mayes, Brenda McHenry, Karen Miller, Janice Rey-
nolds, Lottie Shaw, Eric Coler, Patricia Gayden, and Alice
Faye Washington.
B. The Layoff of September 13
1. The facts
On September 8, snap machine operator Karen Miller and
sleeper line inspectors Opal Deiter and Brenda McHenry at-
tended the union meeting at the Holidome and signed author-
ization cards for the Union. On September 12, Miller, Deiter,
McHenry, and two other employees asked employee Hazel
Mays if she wanted to attend a union meeting. Thereafter,
Miller, Deiter, and McHenry became members of the
Union’s organizing committee. On October 20, at the en-
trance to the Respondent’s plant, they distributed the flyer
bearing their signatures as members of that committee.
On Tuesday, September 13, Supervisor Erma Antley called
Karen Miller to her office and announced that Ed Hakim,
who is acting president of Mini-Togs, and Antley’s superior,
had directed her to lay Miller off because of a lack of work.
Antley remarked that as Miller had been absent from work
2 weeks earlier because she had the flu, she was the logical
choice for layoff. At the time of this conversation, Respond-
ent employed four snap machine operators, including Miller.
Of the four, only Miller suffered a layoff on this occasion.
Antley said she would recall Miller when work increased.2
Early on the afternoon of September 13, Supervisor Antley
called all six of Mini-Togs’ Sleeper line inspectors, including
Opal Deiter, Hazel Mayes, Brenda McHenry, Lottie Shaw,
Irene Anderson, and Janice Reynolds, to her office where
production Manager Willis (Buddie) Bradshaw was waiting.
Bradshaw told the assembled employees that the Respondent
was terminating them and shutting down the sleeper line. He
stated that Mini-Togs’ packing department would inspect the
few remaining uninspected sleepers. Bradshaw also advised
the six employees that he was releasing them immediately to
enable them to qualify for unemployment benefits.3
Employee George Henry Ponsell Jr. saw the six sleeper
line inspectors, as they passed through Mini-Togs’ cutting
department on the afternoon of September 13. Ponsell’s su-
pervisor, George E. Standifer, saw the six employees and ex-
pressed curiosity about what was happening. Standifer quick-
ly disappeared and returned to where Ponsell and employee
Ed Knighten were standing, in the cutting department.
Standifer warned Ponsell and Knighten against talking about
the Union, and being overheard. Standifer said that the six
sleeper line inspectors were laid off ‘‘[b]ecause they was
talkin’ Union.’’4
According to Brenda McHenry, on September 14, her sis-
ter, Supervisor Sarah Hemphill, told her, in substance, that
Respondent had terminated the sleeper line inspectors be-
cause McHenry and Deiter had attended a union meeting,
and had laid Karen Miller off for the same reason. In her tes-
timony, Hemphill denied making such remarks to McHenry.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The General Counsel’s witnesses, Miller, Deiter, and McHenry testified,
that their encounter with Hemphill occurred around noon. According to Re-
spondent’s witnesses, Hemphill and Janice Johnson, the confrontation occurred
about 2:30 p.m. However, as all agreed that it occurred on the afternoon of
September 16, I found it unnecessary to resolve this issue of credibility.
6 Hakim testified that he first learned of the Union’s campaign on Septem-
ber 15, when he received employee Martin’s signed authorization card. I find
from Production Manager Willis Bradshaw’s testimony that he showed Mar-
tin’s authorization card to Hakim on September 16. In light of my assessment
below, in fn. 13, at 16, that Hakim was not a reliable witness, and Standifer’s
remarks, I find that Hakim was aware that Brenda McHenry, Opal Deiter, and
Karen Miller were union activists when he decided to lay them off along with
the four other sleeper line inspectors.
However, as I have explained at greater length below, in
footnote 10, McHenry’s credibility suffered serious damage
when I received in evidence a signed union authorization
card, after she had testified that Respondent’s production
manager had torn it up. Thus, I have serious doubt about the
reliability of McHenry’s testimony regarding her sister’s re-
marks. This doubt, and the absence of corroboration, com-
pelled me to reject McHenry’s contradicted testimony regard-
ing Hemphill’s remarks during their meeting on September
14.
On the afternoon of Friday, September 16, Karen Miller,
Opal Deiter, and Brenda McHenry came to Respondent’s
parking lot, near its plant.5 They began passing out union au-
thorization cards and union literature to Respondent’s em-
ployees. It is undisputed that Supervisor Hemphill appeared
and told the three to leave. Miller, Deiter, and McHenry tes-
tified in substance that Supervisor Hemphill asked McHenry
what she was doing at the lot and then, after getting an an-
swer, remarked that McHenry had already lost her job. Ac-
cording to Miller and Deiter, Hemphill also said that
McHenry would cause Hemphill to lose her job. McHenry
testified in substance that Hemphill warned that her sister’s
union activity would cause the other employees to lose their
jobs. Hemphill denied making the remarks attributed to her
by Miller, Deiter, and McHenry.
The taint which caused me to reject McHenry’s testimony
regarding Hemphill’s remarks to her on September 14, also
impaired Miller’s and Deiter’s credibility. For they corrobo-
rated McHenry’s discredited testimony that the Respondent’s
production manager had torn up a signed union authorization
card on September 16. Aside from the disputed and unreli-
able testimony of McHenry, Miller, and Deiter, there was no
other testimony or other evidence attributing the asserted re-
marks to Hemphill during her confrontation with the union
activists on September 16. Accordingly, I credited Hemp-
hill’s denial.
2. Analysis and conclusions
Section 8(a)(3) of the Act prohibits an employer from dis-
criminating ‘‘in regard to . . . tenure of employment or any
term or condition of employment to . . . discourage mem-
bership in any labor organization.’’ Where the record shows
that an employer’s opposition to union activity was a moti-
vating factor in a decision to discharge or lay an employee
off, the employer will be found to have violated the Act un-
less the employer shows that the discharge or layoff would
have occurred even in the absence of the protected activity.
NLRB v. Transportation Management Corp., 462 U.S. 393,
400, 403 (1983). Accord: NLRB v. Delta Gas, Inc., 840 F.2d
309, 313 (5th Cir. 1988). Where the employer’s explanation
for its action are pretextual—that is, if the reasons either did
not exist or were not in fact relied on—the employer has not
met its burden, and the inquiry is logically at an end. Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982); Wright Line, 251 NLRB 1083, 1084
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
The required unlawful motivation may be shown not only
where the employer takes adverse action against individual
employees in retaliation for their union activities, but also
where the employer takes adverse action against a group of
employees, regardless of their individual sentiments toward
union representation, to punish the employees as a group ‘‘to
discourage union activity or in retaliation for the protected
activity of some.’’ ACTIV Industries, 277 NLRB 356 fn. 3
(1985). The issue in such cases is the ‘‘employer’s motive
in ordering the [adverse action] rather than . . . the anti-
union or pro-union status of particular employees.’’ Birch
Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180
(6th Cir. 1985). For, ‘‘[w]here the central aim of mass lay-
off is to discourage union activity, the discharge is unlawful,
even though neutral or anti-union employees suffer in the
process.’’ Merchants Truck Line v. NLRB, 577 F.2d 1011,
1016 (5th Cir. 1978).
The General Counsel contends that the Respondent’s ter-
mination of the six sleeper line inspectors and its layoff of
Karen Miller on September 13 were in reprisal for Miller’s,
McHenry’s and Deiter’s union activity. The Respondent
urges rejection of the General Counsel’s contention, arguing
that the record does not show the required unlawful motive.
Instead, Respondent claims that the record shows that busi-
ness considerations caused it to lay Miller off and to termi-
nate the six sleeper line inspectors. Applying the Board’s
doctrine set out in Wright Line, supra at 1084, and for the
reasons set forth below, I find merit in the General Counsel’s
contention.
The record shows that on September 13 Respondent was
aware that employees Miller, McHenry, and Deiter had at-
tended the Union’s meeting 5 days earlier and were support-
ing its organizing effort. The first inkling of the Respond-
ent’s awareness occurred on September 13, shortly after it
had terminated the sleeper line inspectors. For, as McHenry,
Deiter, and the other sleeper line inspectors were leaving the
Respondent’s plant, Supervisor Standifer told employees
Ponsell and Knighten not to talk about the Union. Standifer
added meaning to his warning, saying that the ladies got laid
off for talking union.6
Standifer’s warning reflected the Respondent’s union ani-
mus and was likely to coerce its employees and impair their
right to support the Union under Section 7 of the Act. I find,
therefore, that by Standifer’s warning, the Respondent vio-
lated Section 8(a)(1) of the Act.
From the foregoing, I find that the General Counsel has
made a prima facie showing that the union activity of three
of its employees provoked the Respondent to impose eco-
nomic reprisals on them and four of their colleagues. I base
my finding on the timing of Miller’s layoff and the termi-
nation of the six sleeper line inspectors and the remarks of
Supervisor Standifer showing that Respondent was aware of
and hostile to McHenry’s, Deiter’s, and Miller’s union activ-
ity.
649MINI-TOGS, INC.
7 Antley testified that she laid Miller off. However, Miller’s credited testi-
mony showed that on September 13, Antley asserted that Ed Hakim had se-
lected Miller for layoff. In a memorandum which Antley prepared on Septem-
ber 13, she stated that Miller was laid off and provided an explanation for
her selection. However, Antley’s memo did not assign responsibility for the
decision to lay Miller off. In assessing Antley’s credibility, I noted that on
crossexamination she flatly denied ever having seen any of the Union’s lit-
erature, and then testified that she ‘‘went up an aisle [at the plant] one day
and there was a piece laying on the table, but I didn’t know what it was.’’
At another point on cross- examination, she showed great reluctance to dis-
close when she had prepared a summary of the hours of layoff time for Karen
Miller and the six sleeper line inspectors between May 2 and September 16,
both dates inclusive. Indeed, she repeatedly failed to respond when I ques-
tioned her on this topic. These incidents, and my impression during cross-ex-
amination that 45 her denials of recollection were evasive expedients, sug-
gested that she was not a frank witness. This impression strengthened, when
I asked Antley how many times Miller went home from work because of her
allergic reaction to a dye, suggested numbers, and received the answer: ‘‘I
don’t recall.’’ This answer from Miller’s immediate supervisor, who assert-
edly, selected her for layoff because of an allergic reaction to the dye,
castserious doubt on Antley’s credibility regarding Miller’s layoff. In contrast,
Karen Miller testified in a straightforward, open manner. Accordingly, I have
rejected Antley’s testimony that she made the decision to lay Karen Miller off.
Instead, I find that she carried out Hakim’s instructions.
The Respondent insists that union activity played no part
in its decisions to lay Karen Miller off and terminate all six
of its sleeper line inspectors. In support of its position, the
Respondent offers economic explanations. However, the dis-
closures by Supervisors Standifer and Hemphill show that
the union activity of employees Miller, McHenry, and Dieter
motivated the layoff and the six terminations on September
13. Thus, there is ample ground for finding that the Respond-
ent’s explanations are pretextual. However, analysis of the
Respondent’s attempts to justify the adverse actions it pur-
sued against Karen Miller and the six sleeper line inspectors
provides further support for that finding.
Of the four snap machine operators assigned to her on
September 13, Supervisor Erma Antley singled out Karen
Miller for layoff on that date. Antley summoned Miller to
her office and explained that Hakim had directed her layoff
‘‘because the work was slow’’ and because Miller had been
absent 2 weeks before with the flu.7
Before me, Respondent has abandoned the explanation
which Antley gave to Miller on September 13. In its
posthearing brief, Respondent stated that Antley ‘‘selected
Miller because of her absences from work occasioned by the
sinus problems which were aggravated when the Company
printed gowns.’’ This change of explanation suggested that
Respondent believed that the excuses which it gave to Miller
would not survive examination.
The Respondent relied on Supervisor Antley’s testimony
to support its explanation. However, for the reasons I have
given above in footnote 7, and in light of Supervisor
Standifer’s revelations, I am reluctant to credit Antley’s testi-
mony regarding Miller’s selection for layoff on September
13. However, analysis of Antley’s testimony and the record
as a whole, shows this proffered explanation to be wholly
without merit.
According to Antley, she selected Miller for layoff be-
cause she was allergic to a dye the Respondent used in the
manufacture of a gown, and at times was obliged to leave
work because of her allergy. However, Supervisor Antley did
not recall how many times Miller had left work because of
the dye prior to September 13. She did remember that this
phenomenon occurred about once per month when Respond-
ent was manufacturing gowns. There was no showing that at
the time of Miller’s layoff the Respondent was using the of-
fending dye or that it contemplated using it. Indeed, Antley
conceded that as of September 13 the Respondent was about
to start work on an order of sleepers for K-Mart, on which
it would not use dye. Miller’s allergy was not likely to inter-
fere with her work for the immediate future.
Further, the Respondent did not show that the allergy
caused Miller to be absent more than any of the other snap
machine operators. The Respondent did not bother to offer
its records to show that Miller’s absences exceeded those of
the other snap machine operators. Instead, it offered Super-
visor Antley’s unreliable testimony, which I have not cred-
ited. Thus, Miller’s allergy did not provide a discernible
basis for selecting her, rather than another snap machine op-
erator, for layoff on September 13.
In sum, Antley’s testimony and the infirmities in the Re-
spondent’s explanation strongly suggest that it was a hastily
contrived effort to mask the real motive for Karen Miller’s
layoff on September 13. After perceiving that Miller’s recent
bout with the flu did not offer an effective explanation for
its decision to punish her, the Respondent constructed a sec-
ond pretext, which also missed the mark. Instead, I find that
the General Counsel has amply shown that the Respondent
selected Karen Miller for layoff to punish her for engaging
in union activity, and to persuade other employees to dis-
tance themselves from the Union. Accordingly, I find that by
laying Karen Miller off on September 13 the Respondent
violated Section 8(a)(1) and (3) of the Act.
In analyzing Respondent’s defense of its decision to termi-
nate its six sleeper line inspectors, I first turn my attention
to who made the decision and when. According to the testi-
mony of Respondent’s production manager, Willis Bradshaw,
on direct examination, during the last week of August or the
first week in September, Ed Hakim instructed him to lay off
the sleeper line inspectors permanently. Bradshaw also testi-
fied on direct examination, that it was another week before
he did anything about the layoff, and then he carried it out
on a Tuesday, September 13. However, on direct examina-
tion, when counsel asked Bradshaw, ‘‘[W]ere you aware of
Union activity of any of those inspectors when you made the
decision to lay them off?’’ Bradshaw answered: ‘‘No, sir.’’
On cross-examination, Bradshaw agreed that he and Hakim
had discussed the layoff for about 2 weeks, that Hakim made
the decision at the end of August, and that Bradshaw carried
out the decision on September 13.
In his testimony, Hakim consistently admitted that he
made the decision to terminate the sleeper line inspectors.
However, his testimony as to when he made the decision
raised a significant issue of credibility. Initially, Hakim testi-
fied that he ‘‘got with Mr. Bradshaw some time around the
middle of August’’ and decided to cut the sleeper line in-
spectors. A short time later, Hakim testified that, ‘‘We de-
cided to [terminate the inspection line].’’ When I asked
‘‘When?’’ he answered: ‘‘When I walked through the plant
with Mr. Bradshaw, was about the middle to the end of Au-
gust of ‘88.’’ Later, on direct examination, Hakim agreed
that his discussion with Bradshaw occurred at the end of Au-
gust. On cross-examination, Hakim again agreed that he
made the decision regarding the sleeper line inspectors
‘‘[t]he last of August’’ and then testified: ‘‘ I was trying to
think of whether it was the third or fourth week.’’ When I
reminded Hakim of his earlier testimony in which he gave
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 On redirect examination, Hakim testified that Sabah Futayyeh, the packing
department supervisor, would not have known about the permanent layoff of
the six sleeper line inspectors because he told Bradshaw not to tell anyone
about it. Yet, earlier on the same day, on cross-examination, Hakim denied
telling Bradshaw not to say anything about the layoffs. However, I find it un-
necessary to determine whether Futayyeh knew of the layoffs on or before
September 13. The relevant fact is that there was no showing that the Re-
spondent attempted to transfer any of the six sleeper line inspectors to
Futayyeh’s department.
mid-August as the time of the decision to shut down the
sleeper inspection line, he changed his testimony to: ‘‘Early
third week.’’ I suggested: ‘‘About the 18th?’’ Hakim an-
swered, ‘‘Fifteenth to the 18th—17th—16th.’’ Then, on redi-
rect examination by Respondent’s counsel, Hakim testified
that it was September when he made the decision to termi-
nate the sleeper inspection line. Within a few minutes,
Hakim testified that he made the decision in August,
‘‘[f]ifteenth, 16th, 17th.’’
I find from Hakim’s testimony that he made the decision
to terminate the six sleeper line inspectors. However, the
variations in Hakim’s testimony regarding the date on which
he made the decision precluded me from relying on it to
make a finding as to when he made it.
According to Bradshaw’s testimony on direct examination,
it was at the end of August that he and Hakim first discussed
shutting down the sleeper inspection line. Also, according to
Bradshaw, he and Hakim thought about it for a couple of
weeks, then, within a week, Hakim told him to go ahead,
‘‘and it was another week before [Bradshaw] got around to
doing it.’’ If this chronology were credited, Bradshaw could
not have terminated the six inspectors until sometime after
September 13. This carelessness suggests that Bradshaw was
improvising as he testified.
Another infirmity in Bradshaw’s testimony was his failure
to explain why he delayed the layoff until 5 days after the
Union’s meeting. After all, this was a layoff of six employ-
ees whose continued employment was, according to Brad-
shaw and Hakim, a needless expense. Supervisors Standifer’s
and Hemphill’s disclosures that Respondent terminated the
inspectors because of Deiter’s and McHenry’s union activity
provided the explanation for the flaws in Bradshaw’s testi-
mony.
On September 13, Bradshaw told the six sleeper line in-
spectors that he was terminating them because business was
slow and their services were unnecessary as the packing de-
partment was presently performing the inspection task. At the
hearing before me, Hakim added a third reason, which Brad-
shaw neglected to mention on September 13. According to
Hakim’s testimony, the six sleeper line inspectors’ practice
of returning defective garments directly to the sewing ma-
chine operators deprived Supervisor Antley of opportunities
to identify deficient producers. Hakim’s belated offer of this
third reason suggested that he was attempting to shore up
what he perceived to be an inadequate explanation for the
sudden termination of six employees, only 5 days after two
of them had attended a union meeting.
Analysis of Bradshaw’s explanation to the employees
shows that it was an effort to obscure the Respondent’s un-
lawful motive. First, the record showed that on previous oc-
casions when business was slow Respondent ’s practice was
to lay the inspectors of f temporarily, pending an upturn in
orders . On September 13, Bradshaw used a slowdown in
business as a part of his explanation for terminating the
sleeper line inspectors. However, in an effort to justify the
permanent nature of the layoff, Bradshaw explained that Re-
spondent was doing away with the sleeper line inspection po-
sitions because the packing department was inspecting the
same garments. However, on the same day, the Respondent
hired three new employees into the packing department and
trained them to pack and inspect the garments the six termi-
nated employees had been inspecting until 1:30 p.m., that
same day. Neither Bradshaw nor Hakim made any attempt
to place any of the six in the packing department and train
them to pack.
Before me, Hakim asserted he knew nothing of the hiring
of the three new employees. Yet prior to September 13, he
had authorized the packing department supervisor to hire
whatever help she needed to process a K-Mart order. Ha-
kim’s and Bradshaw’s testimony was silent as to why neither
he nor Bradshaw made any effort to relocate any of the six
in the packing department before terminating them on Sep-
tember 13. Nor was there any showing that Hakim or Brad-
shaw suggested that the packing department supervisor con-
sider three of the sleeper line inspectors for packing, training,
and employment in her department on and after that date.8
These omissions suggested that the Respondent was anxious
to get rid of the six employees, and that the double inspec-
tion excuse was pretextual.
Hakim’s testimony in support of the Respondent’s expla-
nation of the termination of the six inspectors defies credu-
lity. According to Hakim, the sleeper line inspectors proce-
dure of returning defective items directly to the sewing ma-
chine operators created an intolerable situation which sur-
faced in 1986, and got worse. In Hakim’s words, ‘‘[I]t be-
came intolerable six months before [August].’’ Also, accord-
ing to his testimony, it was ‘‘a very serious problem that was
costing Mini-Togs thousands of dollars and it was keeping
the sewing operators virtually untrained.’’ Hakim testified
that, without including the cost of the fabric involved, the
employment of the six sleeper line inspectors was costing the
Respondent ‘‘about $6000 to $10,000 a month extra, mini-
mum.’’ Hakim also claimed that the Respondent received
complaints about garments ‘‘that I can hardly believe that
Mini-Togs made.’’ The solution to this expensive 2-year-old
problem, which became ‘‘intolerable’’ in February, did not
occur until 7 months later, on a date that happened to be
only 5 days after two of the six inspectors had attended a
union meeting. Absent from Hakim’s story is any expla-
nation of why he did not take this action in February, or at
another juncture, before union activity surfaced among his
employees.
Hakim’s testimony raised other grounds for doubting his
explanation. Thus, there was no showing that Hakim had
ever broached the subject of deficient work with either Sew-
ing Line Supervisor Erma Antley or with Production Man-
ager Bradshaw. There was no showing that Respondent took
any steps during the 2 years preceding August 1988 to cor-
rect the asserted shortcomings on the sewing line. Finally,
there was no showing that Hakim instructed the inspectors to
return defective garments to Antley instead of returning them
to the sewing operators.
In sum, I find that Hakim’s testimony did not help the Re-
spondent’s defense of its termination of the sleeper line in-
spectors. Indeed, analysis of his assertions revealed its
pretextual nature, thus suggesting that there was another ex-
651MINI-TOGS, INC.
9 The Respondent’s compilation of its records of permanent layoffs in 1988
showed that it permanently laid Alesia Dunn off on October 21. I find from
the uncontradicted testimony of the General Counsel’s witnesses that Dunn
was at the parking lot to pick up a paycheck. From these circumstances, I have
concluded that Dunn was an off-duty employee of the Respondent on Septem-
ber 16.
10 The only substantial issue of credibility regarding the parking lot con-
frontation involving Bradshaw, concerned his disposition of the authorization
card he took from employee Martin. General Counsel’s witnesses Greenhagen,
Miller, Deiter, McHenry, and Robinson testified that Bradshaw tore up the
card. Bradshaw testified that he took the card and presented it to Hakim. At
the hearing, I received the card in evidence, intact. These circumstances sug-
gest that these five General Counsel witnesses acted in concert to embellish
their testimony. The General Counsel has not offered any explanation that
might rehabilitate their credibility. This apparent effort to assist the General
Counsel’s case has last serious doubt on the reliability for the five witnesses’
testimony regarding other allegations in this case. My doubt is such that where
issues of credibility have arisen I have not relied on their uncorroborated testi-
mony.
planation for the terminations. Shattuck Denn Mining Corp.
v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Accordingly,
I find that the Respondent has failed to rebut the General
Counsel’s showing that the six inspectors suffered termi-
nation of their employment because two of them had at-
tended a union meeting. I also find that Respondent termi-
nated the six employees to discourage other employees from
engaging in union activity or otherwise supporting the Union.
I find that by this conduct the Respondent violated Section
8(a)(3) and (1) of the Act.
I also find that, contrary to the General Counsel’s conten-
tions, the record did not support the allegations that by her
remarks to employees on September 14 and 16 Sarah Hemp-
hill created the impression that the Respondent was maintain-
ing surveillance of its employees’ union activities, or that she
threatened plant closure, loss of jobs, or discharge because
its employees engaged in union activities or otherwise sup-
ported the Union. I shall, therefore, recommend dismissal of
these complaint allegations.
C. Interference, Restraint, and Coercion
1. Denial of access
About 3 p.m., on September 16, laid-off employees Karen
Miller and Linda Robinson, terminated employees Brenda
McHenry, Opal Deiter, and Hazel Mayes, and off-duty em-
ployees Alecia Dunn9 and Juana Greenhagen were in Re-
spondent’s parking lot. They were there to pick up paychecks
and to obtain the signatures of Respondent’s employees on
union authorization cards. Greenhagen approached employee
Alfred Martin and asked him to sign a card. As Martin wrote
on the card, Production Manager Willis Bradshaw ap-
proached, and asked him what he was doing. Martin ex-
plained that he was signing a union card.
Bradshaw asked if he could see the card, and reached out
to take it. When he met no resistance, Bradshaw took the
card. He told Greenhagen and her colleagues ‘‘that they were
no longer employees of Mini-Togs and they couldn’t hand
out literature in the parking lot and they was going to have
to leave.’’10 The seven union supporters complied with Brad-
shaw’s order.
Respondent argued that Bradshaw acted lawfully on Sep-
tember 16. In support of its contention, the Respondent of-
fered the testimony of Bradshaw, Hemphill, and Hakim.
Bradshaw testified that Respondent has a rule prohibiting
permanently laid-off employees, exemployees, and other non-
employees from entering its plant or parking lot. He offered
as reason for the rule the prevention of theft of tires, bat-
teries, and other personal property from the employees’ auto-
mobiles parked there. Bradshaw also testified that he has oc-
casionally enforced that rule and a no-solicitation rule. Sarah
Hemphill testified that the Respondent maintains a no-loiter-
ing rule. According to Hakim’s testimony, since 1982 the
Respondent has prohibited nonemployees from entering on
its premises, including its plant and parking lot, and has pro-
hibited solicitation on its premises.
Contrary to the Respondent’s position, I find that Brad-
shaw ran afoul of Section 8(a)(l) of the Act on September
16 when he told discriminatees Deiter, McHenry, Miller, and
Mayes, laid-off employee Robinson, and off-duty employees
Greenhagen and Dunn that they could not hand out union lit-
erature in the Respondent’s parking lot because they were no
longer its employees. However, contrary to Bradshaw’s re-
marks, for purposes of Section 7 of the Act, all seven were
the Respondent’s employees, and were entitled to hand out
union literature on its parking lot. For prior to September 16,
Respondent had not imposed any such rule on its employees.
Indeed, Bradshaw admitted before me that the rule did not
apply to employees on temporary layoff.
There was no showing that prior to September 16 the Re-
spondent had ever enforced such a prohibition against any of
its employees. Nor did it appear that the Respondent had told
its employees about the rule invoked by Bradshaw. The Re-
spondent’s employee handbook, entitled ‘‘Rules and Regula-
tions,’’ did not include such a rule. Bradshaw’s testimony
showed that Respondent never mentioned the rule to new
employees. At the time of the incident, the rule was not post-
ed on the Respondent’s parking lot or anywhere else on its
premises. Hakim testified that the Respondent had first post-
ed the rule on the parking lot in 1982, using paper signs that
were replaced by plastic signs in late 1986 or early 1987.
According to Hakim, someone tore the signs down prior to
September 16. He did not assert that the Respondent had
taken any steps to put new signs up. That Hakim did not
provide more specificity as to when the signs had come
down, suggested that they had not been a matter of concern
to him or to the Respondent. I find from these circumstances,
and my impression that Hakim was not a candid witness with
respect to the signs, that Respondent had no rule limiting its
employees’ access to its parking lot until Bradshaw made
one up on September 16 to thwart union activity. I also find
that the Respondent has not revoked Bradshaw’s pronounce-
ment. Accordingly, I find that by Bradshaw’s conduct on that
date the Respondent imposed a restriction aimed only at
union activists to squelch their efforts to solicit support for
the Union, and has continued to maintain that rule. By pro-
mulgating and maintaining that restriction, the Respondent
has violated Section 8(a)(1) of the Act. Model A Reproduc-
tion Corp., 259 NLRB 555 fn. 3 (1981).
I also find that when Bradshaw asked what Martin was
doing, the circumstances surrounding the question rendered it
coercive. Three days before Bradshaw confronted Martin, the
Respondent had violated the Act by terminating six sleeper
line inspectors and laying off a seventh employee, in an ef-
fort to discourage union activity among its employees. Also,
the immediate context in which the question arose was a fur-
ther unlawful effort to discourage union activity among the
Respondent’s employees. I find, therefore, that Bradshaw’s
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I based my findings regarding Hakim’s speech on a tape recording and
a transcript of it, which I received in evidence on the parties stipulation. In
view of the accuracy of the tape and the transcript, I have not relied on Alice
Washington’s testimony regarding this speech.
12 The Board has recognized that when an employer engages in unfair labor
practices directly involving several of its employees, during an organizing
campaign additional employees are likely to learn of that action quickly. See,
e.g., Graham Architectural Products Corp., 259 NLRB 1174, 1175 (1982). I
question coerced Martin and impaired his right under Section
7 of the Act to engage in union activity, and thus violated
Section 8(a)(1) of the Act.
During working hours on October 17, Hakim delivered an
antiunion speech to the Respondent’s employees at its
plant.11The complaint alleged that on that date, Hakim
threatened Respondent’s employees with loss of employment
through layoffs or plant closure if the Union’s organizing
drive succeeded. The General Counsel argued that Hakim’s
remarks included an implied threat of plant closure and loss
of employment if the Respondent’s employees selected the
Union as their bargaining representative. The Respondent ar-
gued that Hakim’s speech was free of any threat. I find that
Hakim’s speech included implied threats of economic re-
prisal, including plant closure, loss of employment, and ter-
mination if the Respondent’s employees selected the Union
as their exclusive collective-bargaining representative.
Under Section 8(c) of the Act, Hakim was free to express
to the assembled employees his general opinion about unions
or about the Union, and union adherence, as long as his re-
marks did not include a ‘‘threat of reprisal or force or prom-
ise of benefit.’’ According to the General Counsel, Hakim
exceeded the bounds of Section 8(c) of the Act. In support
of his position the General Counsel called attention to Ha-
kim’s repeated references to employers who closed down
after their employees selected a union to bargain on their be-
half, and his remark that a union had forced steel mills to
shut down their domestic facilities and transfer operations
overseas. The General Counsel argued that these assertions,
without supporting evidence of the actual reasons for these
shutdowns, suggested that ‘‘the advent of a union equalled
the end of the business.’’ I agree. I also agree that Hakim
impliedly threatened similar action when he told the assem-
bled employees:
If the union man is telling you, is telling you you’ve
got nothing to lose, don’t believe him. Ask some of the
other factories; that aren’t around any longer. You’ve
got plenty to lose. Before most of you landed up, here
at Mini Togs and Embroideries and Luv-Care, you were
job hunting. I think you know what’s out there. Espe-
cially in Monroe, Louisiana, a small Southern town. We
opened this plant in Monroe with a plan for success.
We did it. We are successful and we would like to al-
ways be here and give you jobs. We don’t want to go
back to contractors or overseas.
I have considered the above-quoted excerpt of Hakim’s
speech and appraised its message with the guidance of NLRB
v. Gissel Packing Co., 395 U.S. 575, 618 (1969). There, the
Court recognized that an employer in addressing his employ-
ees on the subject of union representation may predict the
economic consequences he believes unionization will have
on his business.
In such a case, however, the prediction must be care-
fully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable con-
sequences beyond his control [citation omitted]. If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons un-
related to economic necessities and known only to him,
the statement is no longer a reasonable prediction based
on available facts but a threat of retaliation based on
misrepresentation and coercion.
In his speech to the Respondent’s employees on October
17, Hakim told of employers who closed their plants after
unionization and of other employers who closed down their
domestic facilities and shifted their operations overseas after
their employees chose a union to represent them. Hakim thus
suggested that unionization would endanger Respondent’s
business. He also reminded his listeners of the scarcity of
work in Monroe before Respondent opened its plant busi-
ness, and how Respondent had since been a fertile source of
employment. He then suggested to the listening employees
that unionization would cause the Respondent to contract out
its work or move overseas. Absent from Hakim’s remarks re-
garding these possibilities, was any attempt to show by ‘‘ob-
jective fact’’ that they were beyond the Respondent’s control.
The Respondent’s termination of the six sleeper line inspec-
tors and its layoff of Karen Miller in violation of Section
8(a)(3) and (1) of the Act, in September, strengthened the
suggestion in Hakim’s speech that if the employees contin-
ued to support the Union, they would jeopardize their em-
ployment at the Respondent’s plant. In sum, I find that
Hakim warned the employees that if they selected the Union
as their bargaining representative the Respondent would shut
down the Monroe plant and terminate their employment. By
this warning, I find that the Respondent violated Section
8(a)(1) of the Act. TRW-United Greenfield Div. v. NLRB,
637 F.2d 410, 419 (5th Cir. 1981).
I also find that Hakim exceeded the bounds of Section 8(c)
of the Act in the following portion of his speech to employ-
ees on October 17:
In 1983 was the last time the union tried to get in
here. At that point, we shut down a plastic pant line.
Where’s Alice Washington, raise your hand. Alice
Washington was in that line. A couple of you others
were. They said oh, they’re shutting this line down just
to scare us. They’re not going to keep it closed. Four
and one half years later and 26 employees less, those
people, I guess are still waiting to come back here. But,
that line’s never been reopened.
In this portion of his speech, I find that Hakim was sug-
gesting to his listeners that the Respondent would not shrink
from discharging employees in response to the Union’s cur-
rent organizing drive. Further, the employees were to note
that the Respondent was not bluffing. Employee Karen Mil-
ler’s discriminatory layoff and the discriminatory termination
of the six sleeper line inspectors in September showed the
Respondent’s readiness to use its power over jobs unlawfully
to discourage union activity among its employees. I have lit-
tle doubt that employees listening to Hakim were aware of
the terminations and layoff, and from them gained the full
import of his message.12 I find, therefore, that by the portion
653MINI-TOGS, INC.
also note that in construing otherwise ambiguous remarks by an employer to
employees regarding the adverse economic impact of union representation on
its business the Board will view them in the context of other unfair labor prac-
tices and find them to be unlawful threats. E.g., Dutch Boy, Inc., 262 NLRB
4, 6–7 (1982).
13 According to Hakim’s testimony, he knew nothing of Coler until Septem-
ber 19, Hakin flatly denied having heard anything from Bradshaw about
Coler’s attitude toward the Union or about his signature on a union card. Brad-
shaw’s testimony was silent on this topic. However, I have found that Brad-
shaw observed Coler signing a union card on September 16. I have also found
that on the same day, Bradshaw had an opportunity to report his observation
when he showed employee Martin’s authorization card to Hakim. These find-
ings and my considerable doubt about the reliability of Hakim’s testimony, as
discussed earlier in this decision, persuaded me to reject his testimony regard-
ing his knowledge of Coler’s signature on a union card.
of his speech excerpted immediately above, Hakim restrained
and coerced the Respondent’s employees in violation of Sec-
tion 8(a)(1) of the Act.
After Hakim had completed his speech, he permitted the
assembled employees to go on a break. During that time, he
distributed two handouts to the employees, one of which in-
cluded a form bearing the following message, addressed to
Union Representative James Pepitone: ‘‘I did not understand
what the Union Card meant when I signed it. Please cancel
my Union Card and return it to me. There is no further need
to contact me or discuss this matter.’’ The form provided a
space for the employee’s signature. There was no showing
that any employee asked Hakim or any other member of the
Respondent’s management for a withdrawal request or for
help in revoking a signed union authorization card prior to
October 17.
Hakim’s spontaneous distribution of his withdrawal re-
quest form to Respondent’s employees came in the wake of
a speech in which he threatened economic reprisals if the
employees selected the Union as their collective-bargaining
representative. Employees were likely to accept the with-
drawal form, mindful of Hakim’s warning that continued
support for the Union would provoke the Respondent into
shutting the plant down or reducing the work force. Thus co-
erced, employees would be prone to surrender their right
under the Act to support a union. In these circumstances, I
find that Hakim violated Section 8(a)(1) of the Act by solic-
iting the Respondent’s employees to abandon the Union.
Gupta Permold Corp., 289 NLRB 1234, 1249 (1988).
D. Eric Coler’s Discharge
1. The facts
At the time of his discharge on September 19, Eric Coler,
a janitor, had been in the Respondent’s employ for 1 month
or 6 weeks. On the afternoon of September 16, at the request
of employee Juana Greenhagen, Coler signed a union author-
ization card at the entrance to the Respondent’s plant abut-
ting on the parking lot. As Coler received the card, Deiter
saw Production Manager Willis Bradshaw, in the building,
on his way to the entrance, looking toward Coler. When
Bradshaw reached the entrance, Coler accompanied him into
the parking lot. Soon after their arrival in the parking lot,
Bradshaw seized Alfred Martin’s signed authorization card,
and ordered the union activists to leave. Three days later,
Hakim discharged Coler.
2. Analysis and conclusions
That Coler signed an authorization card for the Union was
undisputed. The record showed the Respondent’s hostility to-
ward employees identified as union supporters. I have also
found that the Respondent’s union animus had motivated it
to discriminate against such employees and their colleague’s.
Yet the record was unclear as to whether Hakim had learned
of Coler’s signed authorization card, or had at least formed
a suspicion that Coler had signed such a card before he de-
cided to discharge him.
According to Opel Deiter, as Bradshaw came toward the
entrance of the Respondent’s facility on the afternoon of
September 16, Bradshaw saw Coler sign an authorization
card on September 16. Deiter also testified that Coler accom-
panied Bradshaw into the parking lot. Bradshaw testified
only that Coler was standing in the entrance and accom-
panied him into the parking lot. Neither counsel for the Re-
spondent nor counsel for the General Counsel asked Brad-
shaw whether he saw Coler sign an authorization card or saw
Coler with Greenhagen and Deiter on September 16. Thus,
Deiter’s testimony stands uncontradicted. I find, therefore,
that on September 16 Bradshaw observed Coler signing a
union authorization card.
The record showed that Bradshaw and Hakim were the
Respondent’s top management officials at the plant, that they
regularly conferred about the Respondent’s plant operations,
and that Bradshaw reported matters concerning the plant to
Hakim. From this close business relationship and their well-
demonstrated concern about the Union’s attempt to organize
the Respondent’s employees, I find that when he gave Mar-
tin’s signed union card to Hakim on September 16, Brad-
shaw mentioned Coler’s signature card.13
Three days after learning that Coler had signed a union
card Hakim discharged him. The timing of the discharge so
soon after Hakim had identified Coler as a prounion em-
ployee and Hakim’s demonstrated willingness to resort to un-
fair labor practices, including discrimination, to oppose the
Union, supplied a prima facie showing of unlawful motive.
The Respondent argued that union animus played no part
in Hakim’s decision to discharge Coler. In support of this
contention, Respondent offered Hakim’s testimony that he
discharged Coler ‘‘for continuous harassment [of] another
fellow employee and calling her a fat ass—telling her to
move her fat ass, and calling her a fat doughnut.’’ There was
no showing that Coler had engaged in other misconduct or
had performed his work in an unsatisfactory manner during
his brief employment by the Respondent. In a further effort
to assist the Respondent’s explanation, Hakim testified that
the recency of Coler’s employment warranted the use of dis-
charge rather than lesser punishment. I find no merit in the
Respondent’s contention.
On September 19, employee Donita Key complained to
Hakim that while sweeping near her work station Coler had
told her: ‘‘Move your ass out the way.’’she also reported,
tearfully, that a fellow employee had told her that Coler had
referred to her as: ‘‘Doughnut and elephant.’’ According to
Hakim, after confirming Key’s complaints by questioning her
informant, he summarily discharged Coler for harassing a
fellow employee.
The record suggested that Coler’s discharge for verbally
harassing a fellow employee was a substantial departure from
the Respondent’s policy regarding such misconduct. The Re-
spondent’s ‘‘Rules and Regulations,’’ which prohibit employ-
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I based my findings regarding Gayden’s employment and union activity
on her testimony.
15 Gayden had difficulty remembering details regarding her layoff on Octo-
ber 13, and her return to work a few days later. In contrast, Supervisor
Futayyeh seemed to have a strong recollection regarding that layoff and the
circumstances leading up to Gayden’s return to work on October 18. I also
noted that the Respondent’s daily attendance records, which I received in evi-
dence, supported Futayyeh’s testimony regarding Gayden’s return to work on
that date. Accordingly, where their testimony conflicted regarding when
Futayyeh spoke to Gayden about returning to work, when Gayden was sched-
uled to return, and when she actually returned, I have relied on Futayyeh’s
testimony.
16 Futayyeh testified that when she decided to lay Gayden off on October
she was not aware of Gayden’s prounion sentiment. However, Futayyeh’s tes-
timony left unchallenged Gayden’s testimony regarding Futayyeh’s and
Antley’s actions on the plant floor on the morning of October 20. In contrast
with other portions of her testimony, which I have rejected, Gayden testified
about her observations of Antley and Futayyeh with certainty, and in a frank
manner. Therefore, I have rejected Futayyeh’s denial and credited Gayden in
this regard.
ees from making ‘‘provocative statements,’’ did not prescribe
discharge for a first offense. There was no showing that prior
to September 19, any other employee of the Respondent had
suffered discharge for verbally harassing a fellow employee.
More important, Hakim testified that if ‘‘a long standing em-
ployee’’ had been the offender he ‘‘would have probably put
him on a probationary period or tried to work something
out.’’ The record showed that in April or May, after learning
that employee George Ponsell had harassed his estranged
wife, who was also employed at the same plant, Hakim only
warned him. One week later, after Ponsell had again harassed
his wife, Hakim gave him a final warning.
Hakim did not help the Respondent’s cause when he testi-
fied that he had inflicted discharge on Coler because he had
been an employee for only 4 or 6 weeks. For nowhere in the
record had the Respondent shown that it had maintained the
policy Hakim had suggested in this testimony. Nor did the
Respondent show that before September 19 it had considered
length of employment in assessing punishment for employee
misconduct. I find from Hakim’s and Ponsell’s testimony
that when Hakim warned him about harassing his wife
Ponsell had been in Respondent’s employ for only approxi-
mately 1 year. These circumstances suggest that Hakim pre-
sented this explanation in an attempt to disguise the real rea-
son for Coler’s discharge.
In sum, the Respondent has not shown that it would have
discharged Coler for his uncomplimentary remarks to, and
regarding, employee Key, even if he had not signed a union
card. Thus, the General Counsel’s prima facie case stands
unrebutted. Accordingly, I find that by Hakim’s discharge of
Coler on September 19, the Respondent violated Section
8(a)(3) and (1) of the Act. Wright Line, 1083, 1089 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
E. Patricia Gayden’s Layoff
1. The facts
The Respondent hired Patricia Gayden as a presser in July.
However, when pressing work was slow, Respondent em-
ployed her as a packer. Sabah Futayyeh, who supervised
packing and pressing, was Gayden’s supervisor.
Gayden attended a union meeting on September 8, at
which time she signed a union authorization card. Gayden
was also a member of the Union’s organizing committee, at
the Respondent’s plant.14
On October 13, the Respondent laid of f Gayden and
seven other pressers for lack of work. On the previous day,
Supervisor Futayyeh had singled Gayden out and requested
that she return to work on Monday, October 17. Gayden did
not return to work until October 18. On that day and on Oc-
tober 19, Gayden worked as a packer on an order for K-
Mart.15
About 7:30 a.m., on October 20, Gayden and other union
supporters distributed a prounion flyer outside of the Re-
spondent’s plant, to arriving employees. At the bottom of the
flyer were the signatures of the organizing committee mem-
bers, including Patricia Gayden. Shortly after 8 a.m., Gayden
was on the plant’s production floor. She observed Super-
visors Futayyeh and Antley looking at a copy of the flyer
and occasionally looking from the flyer to one of the em-
ployees whose signature appeared on it. At one point, the
two supervisors gazed from the flyer to Gayden. Shortly, the
two supervisors left the plant floor.16
I find from Gayden’s credible testimony that soon after
she had disappeared from the plant floor Futayyeh came to
Gayden and, without providing any explanation or reason,
told her to take the break coming at 9:20 a.m., clock out at
9:30 a.m., and go home. Gayden told Mattie Heckard of
Futayyeh’s instruction. I find from Gayden’s unchallenged
testimony, that Heckard said that there was ‘‘plenty of
work.’’ As instructed, Gayden clocked out. Respondent re-
called Gayden on January 3, 1989, and she returned to work
on the following day.
2. Analysis and conclusions
The General Counsel has shown that approximately 2
hours after Gayden had openly supported the Union, by dis-
tributing a prounion flyer near the plant, Respondent laid her
off. In the interim, her immediate supervisor, Futayyeh, had
obtained a copy of the flyer showing Gayden’s signature and
had identified here as a leading union activist. This short se-
quence between Futayyeh’s discovery and Gayden’s layoff
raised the spectre of another violation of Section 8(a)(3) and
(1) of the Act. The Respondent’s previous resort to unlawful
discharges and layoffs to rid the plant of employees whom
it had identified as union supporters, and its other unfair
labor practices found above, provided buttressing for the
General Counsel’s prima facie showing that Gayden’s layoff
was in reprisal for her union activity, and therefore violated
the Act.
According to Supervisor Futayyeh, on October 20, her de-
partment completed its work on an order for K-Mart, and she
laid everyone off. I have found from Gayden’s
uncontradicted and credited testimony, that at that time, floor
girl Mattie Heckard told her there was ‘‘plenty of work.’’
The Respondent called Heckard as its witness, after Gayden
had testified. However, the Respondent’s counsel did not ask
Heckard about this remark. This omission suggested that her
testimony would not have assisted its defense.
Gayden testified that she was the only presser Futayyeh
laid off on October 20. The record did not show that any
other employee received a sudden, unheralded layoff notice
from the Respondent on that date, 1 hour and 20 minutes
after the 8-hour workday had begun. The Respondent did not
offer any explanation for this extraordinary circumstance.
655MINI-TOGS, INC.
17 I based my findings regarding Washington’s employment history and her
union activity on her undisputed testimony.
18 Washington testified, in substance, that she did not use any improper lan-
guage when she complained about the antiunion handbill at her work station.
However, while testifying about this incident, Washington seemed to be care-
fully choosing her words. In contrast to Washington and the other witnesses,
Mattie Heckard seemed to have the best grasp of what happened and what
Washington’s reaction was. Heckard also impressed me as being a conscien-
tious witness, who was providing her full recollection. Accordingly, I based
my findings regarding Washington’s remarks upon Heckard’s testimony.
19 I have credited Duart’s uncontradicted testimony regarding her reaction to
Washington’s remarks.
There was no attempt to explain Futayyeh’s failure to an-
nounce the layoff at the end of the previous workday. In
sum, I find that the Respondent has failed to provide an ade-
quate explanation of the timing and suddenness of Gayden’s
layoff on October 20. Finally, the Respondent has not sub-
stantiated Futayyeh’s excuse for laying off Gayden.
I find from the General Counsel’s unrebutted and convinc-
ing showing that the Respondent laid Gayden off on October
20, because it identified her as a leading union advocate. Ac-
cordingly, I further find that by this discriminatory layoff,
the Respondent violated Section 8(a)(3) and (1) of the Act.
F. Alice Faye Washington’s Discharge
1. The facts
As of October 31, when, according to its records, the Re-
spondent discharged her, Alice Faye Washington had been in
its employ for almost 12 years. Washington was a sewing
machine operator on the sleeper line. Irma Antley was her
immediate supervisor. Prior to October 31, the Respondent
had never disciplined Washington.
Washington attended the Union’s meeting on September 8,
where she signed an authorization card. Thereafter, she en-
couraged fellow employees to attend union meetings, and
distributed union literature. Washington was a member of the
Union’s organizing committee. On October 20, she distrib-
uted a prounion flyer bearing her signature immediately
under Patricia Gayden’s.17
In his antiunion speech to the Respondent’s employees on
October 17, Hakim singled Alice Washington out three times
for mention. First, Hakim called Washington’s name out
when he recalled the termination of a line of 26 employees
4–1/2 years earlier, in the face of a union organizing cam-
paign. He called out: ‘‘Where’s Alice Washington, raise your
hand. Alice Washington was in that line.’’
The second mention of Alice Washington came in a dis-
cussion of the significance of signing a union card, as fol-
lows:
Remember, you should not sign the card unless you
are completely willing to accept all the obligations and
consequences of the union membership and representa-
tion by the union. I hope I’ve made myself clear on this
point. The very ones that are trying to get you to sign
cards might be a union representative and you might
have to answer to, be Alice Washington.
In his final reference to Alice Washington, Hakim recalled
the circumstances under which he had hired her, over 11
years ago, as follows:
We try to hire people that social workers bring us.
They have committed murder, and served time in pris-
on, which we have a couple here. I know one, right
Alice Washington? Yes, if she asked me to sign a
union card, I would probably sign one too.
As found above, on October 17, following his antiunion
speech, Hakim distributed a form to be used by employees
to revoke their union authorization cards. When he came to
Washington’s work station, he offered a copy of the form to
her, and asked her to read it. She rejected the form, saying
she had already seen them and did not need one. Hakim re-
sponded: ‘‘Well, you probably need four or five of them.’’
Washington grinned and took his remark lightly. Hakim
smiled and walked away.
On the morning of October 28, when Washington returned
to her work station, after a break, she found an antiunion
handbill on her sewing machine. She picked it up, glanced
at it, and asked who had put it there. Employee Juana
Greenhagen and one other employee answered, naming em-
ployee Carol Coppel. Washington screamed and hollered:
‘‘You f—in’ whores better stop putting these papers on my
table unless I ask you for one.’’18
I also find from Mattie Heckard’s testimony that at about
12:30 p.m., on that same day, Washington erupted again near
Heckard’s work station, while reading an antiunion pamphlet.
She yelled: ‘‘These are a bunch of Goddamn lies.’’
Sewing machine operator Myrlene Duart, who had passed
out copies of the antiunion pamphlet, heard Washington’s
harsh language. Washington’s reference to the distributors of
the antiunion flyer as ‘‘f—in whores’’ and to its contents as
‘‘f—ing lies,’’ upset Duart to the point that she complained
to Supervisor Erma Antley, on that same day.19
On the afternoon of October 31, Supervisor Antley in-
structed Washington and six other employees to go to Ha-
kim’s office. The employees congregated outside of Hakim’s
office and entered one at a time. Inside the office were
Hakim and his attorney, David Hagaman. The latter advised
each employee that the sole purpose of interviewing her
‘‘was to secure facts and information.’’ He also assured each
that she was free to discontinue the interview and leave with-
out fear of reprisal. Hagaman presented each employee with
a form setting out the terms of the interview in detail, and
asked each to sign on the bottom of the form. Hagaman
questioned each employee regarding Washington’s conduct
on October 28.
In her signed statement, employee Mattie Heckard told
Hagaman and Hakim: ‘‘At morning break, I heard Alice say
to Carol, ‘You f—king whores . . . don’t be putting shit on
my machine.’’’ Heckard also stated that she had heard Wash-
ington referring to the handout’s contents as ‘‘a bunch of
Goddamn lies.’’
Hope Webster gave a statement corroborating Heckard’s.
She added that Washington referred to the handout’s contents
as ‘‘bullshit.’’
Employee Duart gave a statement consistent with her com-
plaint on October 28. She asserted that Washington read the
antiunion flyer and described its contents as ‘‘f—ing lies’’
and ‘‘lies.’’ Duart also told Hakim and Hagaman that Wash-
ington stood up at lunch on October 28, and loudly described
those employees, who had distributed the antiunion flyer as
‘‘f—king whores.’’
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 I based my findings regarding the events on and after October 31, on
Washington’s and Hakim’s testimony, and the relevant exhibits received in
evidence.
Three employees provided statements asserting that they
did not hear Washington using profanity toward anyone. Em-
ployee Glenda Coleman told Hagaman and Hakim that she
did not hear Washington use profanity when she instructed
employee Coppel to stop putting things on her desk. Cole-
man also recalled that at lunchtime, Washington referred to
the contents of the antiunion flyer distributed earlier that day,
as a ‘‘bunch of Goddamn lies.’’
Employee Vicki M. Blanton’s statement agreed that Wash-
ington did not use profanity when she asked Coppel not to
put literature on her desk. She also asserted that during
lunch, on the same day, she heard Washington refer to the
antiunion handout, saying: ‘‘This, is bullshit and a bunch of
f—king lies.’’
Juana Greenhagen stated that she worked from 9:30 to
11:30 a.m. on October 28, and did not hear Washington use
profane language.
When Washington came into Hakim’s office, she refused
to sign the statement of her right to refuse to participate in
the investigation. Hakim invited Washington to ‘‘get down to
this little incident that happened on Friday.’’ Washington
asked, ‘‘What little incident?’’ Hakim said ‘‘the cursing and
the profane language.’’ Washington professed ignorance of
any such occurrence. When Hakim said he had witnesses,
Washington replied that she did not know who they might
be, and did not care to know, because they had lied. After
Washington refused to answer questions, Hakim told her to
leave the Respondent’s plant and not to return until she had
decided to answer his questions.
By letter dated November 3, Hakim notified Washington
that because she ‘‘used profane, cursing and defamatory lan-
guage in the presence of and about some of the company’s
employees’’ and because she ‘‘failed to cooperate in the in-
vestigation, [he] suspended [her] from work until further no-
tice.’’ In his letter, Hakim offered to reduce the punishment
if Washington satisfied specific conditions.
Hakim’s proposal was as follows:
I have decided that on the condition you give us
your version of the facts, and also publicly apologize
to the ladies you called ‘‘f—ing w—s,’’ you will be
suspended for thirty days. At the end of that period you
may return to work on a probationary basis on the con-
dition that if you use profane, cursing or defamatory
language to any employee on company property within
six months, you will be terminated.
Hakim urged Washington to accept his proposal, ‘‘because
the company does not want to lose an employee like you
who has a long history of valuable service to the company.’’
He also warned that if she rejected his offer, the Respondent
would convert her suspension to a discharge, effective No-
vember 10.
In a letter dated November 9, Washington rejected Ha-
kim’s proposal and again denied the alleged misconduct at-
tributed to her. Finally, in a letter dated November 17,
Hakim afforded her three business days to reconsider his
proposal. He also stated that if she did not reply her suspen-
sion would become a discharge. Washington did not reply.
Thereafter, the Respondent did not offer reinstatement to
Washington.20
The record showed that the Respondent’s employees regu-
larly, on a daily basis, have used profane language such as
‘‘son-of-a-bitch,’’ ‘‘mother f—ker,’’ ‘‘whore’’ and other un-
savory language, in the plant, in front of supervisors, without
fear of punishment.
2. Analysis and conclusions
The General Counsel contended that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by terminating Alice
Faye Washington on October 31 because she was a union ac-
tivist. According to the Respondent, union activity had noth-
ing to do with Hakim’s decision to suspend her on October
31, and his subsequent decision to discharge her. Instead, the
Respondent urged that Washington’s reference to employees
as ‘‘whores’’ and other profane language motivated Hakim.
I find merit in the General Counsel’s contention.
Alice Faye Washington was a leading union supporter.
After attending a union meeting on September 8, she encour-
aged fellow employees to attend such meetings. Washington
belonged to the Union’s inplant organizing committee. On
October 20, she stood outside the Respondent’s plant distrib-
uting a union handbill, on which her signature appeared.
By October 17, Hakim was aware of Washington’s leading
role in the union organizing campaign. On that date, he sin-
gled Washington out three times for mention in his antiunion
speech to the Respondent’s employees. In one such ref-
erence, he pointed out that 26 of her colleagues had suffered
discharge in the course of a union organizing campaign at
the Respondent’s plant in 1983. In each of the two remaining
references to Washington by name, Hakim called attention to
her union activity. On that same day, when he offered Wash-
ington a form to withdraw her authorization card from the
Union, he jokingly remarked that she probably could use
four or five. Hakim also admitted that on or about October
20 he saw the Union’s handbill bearing Washington’s signa-
ture. Finally, on October 31, in the course of investigating
Washington’s asserted misconduct, Hakim learned of her out-
spoken rejection of an antiunion flyer, which had echoed his
sentiment.
There can be little doubt that Hakim was ired by Washing-
ton’s persistent union activity. During the weeks leading up
to his decision to suspend Washington, Hakim had used
threats of economic reprisal, layoffs, and discharges in his ef-
fort to eradicate support for the Union among the Respond-
ent’s employees. Hakim’s hostility to the Union and the tim-
ing of his decision to suspend Washington, on the very day
he had obtained details of her outspoken rejection of his
antiunion views, are the final ingredients in the General
Counsel’s prima facie showing that her union activity moti-
vated that decision.
Here, in a plant where obscenities flowing from the em-
ployees were countenanced by management on a daily basis,
Hakim suspended, and then discharged an employee of al-
most 12 years’ service, asserting as ground her use of ob-
scene language. He claimed that he took this unusual step
because she directed an obscenity at specific employees. The
657MINI-TOGS, INC.
21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Respondent has not shown any instance in which an em-
ployee received any discipline for similar misconduct. Nor
has the record shown any instance in which such misconduct
occurred. Given the free usage of obscene language in the
Respondent’s plant, I find it unlikely that the language which
Hakim referred to when he explained his reasons for sus-
pending and then discharging Washington, would have pro-
voked him to do either had she not been an outspoken union
activist.
However, in resolving issues arising out of Hakim’s deci-
sions regarding Washington on and after October 31, I have
considered an alternative basis for finding them unlawful. I
have looked to the Board’s policy regarding an employee’s
right to the protection of the Act while engaged in conduct
enumerated in Section 7 of the Act, where objectionable
speech accompanies such conduct. The Board has recognized
‘‘that obscenities uttered by an employee as part of the res
gestae of concerted protected activity were not so flagrant or
egregious as to remove the protection of the Act and warrant
the employee’s discipline.’’ Postal Service, 250 NLRB 4
(1980).
Applying the Board’s policy here, I find that Washington
was a strong union advocate, exercising her right, in concert
with other employees, under Section 7 of the Act, to show
that support when confronted with antiunion literature. She
was not in a drawing room, nor in a social gathering, when
she received what she considered obnoxious propaganda. She
was in a factory where she and her fellow employees used
the rough language of the street, without management inter-
ference. She was voicing her disapproval of the literature and
the employees, who advocated its message, when they dis-
tributed it to Washington and others. I also find that the ob-
scenities she used, when she voiced her rejection of the
antiunion flyer’s contents, accompanied the exercise of the
same right protected by Section 7 of the Act. In both in-
stances, they were part of the res qestae. Washington’s use
of obscenities in these circumstances did not render her unfit
for further employment.
In sum, I find that Hakim seized on Alice Faye Washing-
ton’s use of obscene language on October 28, as a pretext
for ridding the Respondent’s plant of an outspoken union ad-
vocate, and thereby violated Section 8(a)(3) and (1) of the
Act. However, even if her union activity did not motivate
him, I would find that by discharging Washington on Octo-
ber 31, for using such language when she did so in express-
ing support for a labor organization, Hakim violated Section
8(a)(1) of the Act. Coors Container Co., 238 NLRB 1312,
1320 (1978).
CONCLUSIONS OF LAW
1. By threatening employees with discharge, by informing
them that other employees had lost their jobs because of their
union activities, by promulgating and enforcing a rule pro-
hibiting union solicitation and distribution by off-duty em-
ployees on its premises during nonworking time, by interro-
gating employees regarding their union activity, by threaten-
ing its employees with layoffs or plant closure if they se-
lected a union as their bargaining representative, and by so-
liciting its employees to withdraw their signed authorization
cards from the Union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) of the Act.
2. By laying off Karen Miller and Patricia Gayden and by
discharging Irene Anderson, Opal Deiter, Hazel Mayes,
Brenda McHenry, Janice Reynolds, Lottie Shaw, and Alice
Faye Washington, the Respondent violated Section 8(a)(3)
and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily laid-off employees
Karen Miller and Patricia Gayden, both of whom it has since
recalled, it must make them whole for any loss of earnings
and other benefits they may have suffered as a result of this
discrimination against them, plus interest, as provided below.
Having discriminatorily discharged employees Irene Ander-
son, Opal Deiter, Hazel Mayes, Brenda McHenry, Janice
Reynolds, Lottie Shaw, Eric Coler, and Alice Faye Washing-
ton, the Respondent must offer them reinstatement and make
them whole for any loss of earnings and benefits they may
have suffered as a result of that discrimination in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), plus in-
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
I shall also recommend that the Respondent be required to
remove from its files any references to Eric Coler’s discharge
or to Alice Faye Washington’s discharge, which I have found
violative of the Act, as set forth above, and notify these em-
ployees, in writing, that it has done so and that it will not
use these discharges against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The Respondent, Mini-Togs, Inc.; Luv-N-Care, Inc.; and
Embroideries, Inc., a single employer, Monroe, Louisiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in and support for or activi-
ties on behalf of United Steelworkers of America, AFL–
CIO–CLC, or any other labor organization, by discriminating
in any manner against any of its employees in regard to their
hire and tenure of employment or any other term or condi-
tion of employment because of their union membership, sym-
pathies, or activities.
(b) Coercively interrogating employees about their union
membership, activities, or sympathies.
(c) Threatening discharge, layoff, plant closure, or other
reprisals because its employees support or select United
Steelworkers of America, AFL–CIO–CLC, or any other a
labor organization, as their collective-bargaining representa-
tive.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(d) Soliciting employees to withdraw their signed author-
ization cards from United Steelworkers of America, AFL–
CIO–CLC or from any other labor organization.
(e) Promulgating, maintaining, or enforcing a rule prohibit-
ing off-duty employees from engaging in solicitation or dis-
tribution on its premises, during nonworking time, on behalf
of United Steelworkers of America, AFL–CIO–CLC, or any
other labor organization.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Irene Anderson, Opal Deiter, Hazel Mayes, Bren-
da McHenry, Janice Reynolds, Lottie Shaw, Eric Coler, and
Alice Faye Washington immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision, plus
interest.
(b) Make whole Karen Miller and Patricia Gayden for any
loss of pay and other benefits they may have suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision, plus interest.
(c) Remove from its files any references to the unlawful
discharges, and notify the employees in writing that this has
been done, and that the discharges will not be used against
them in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Monroe, Louisiana, copies of the
attached notice marked ‘‘Appendix.’’22 Copies of the notice,
on forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in and support for
or activities on behalf of United Steelworkers of America,
AFL–CIO–CLC, or any other labor organization, by dis-
criminating in any manner against any of our employees in
regard to their hire and tenure of employment or any term
or condition of employment because of their union member-
ship, sympathies, or activities.
WE WILL NOT coercively interrogate employees about their
union membership, activities, or sympathy.
WE WILL NOT threaten discharge, layoff, plant closure, or
other reprisals because our employees support or select
United Steelworkers of America, AFL–CIO–CLC, or any
other labor organization, as their collective-bargaining rep-
resentative.
WE WILL NOT solicit employees to withdraw their signed
authorization cards from United Steelworkers of America,
AFL–CIO–CLC or from any other labor organization.
WE WILL NOT promulgate, maintain, or enforce a rule pro-
hibiting our off-duty employees from engaging in solicitation
or distribution on our premises, during nonworking time, on
behalf of United Steelworkers of America, AFL–CIO–CLC
or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Irene Anderson, Opal Deiter, Hazel Mayes,
Brenda McHenry, Janice Reynolds, Lottie Shaw, Eric Coler,
and Alice Faye Washington immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously enjoyed
and make them whole for any loss of earnings and other ben-
efits they may have suffered as a result of the discrimination
against them, plus interest.
WE WILL make whole Karen Miller and Patricia Gayden
for any loss of pay and other benefits they may have suffered
as a result of the discrimination against them, plus interest.
WE WILL remove from our files any reference to the un-
lawful discharges and notify the employees in writing that
659MINI-TOGS, INC.
we have done this, and that the discharges will not be used
against them in any way.
MINI-TOGS, INC.; LUV-N-CARE, INC.; AND
EMBROIDERIES, INC., A SINGLE EMPLOYER